When petitioner completed his sentence and reapplied for a driver's license,
DMV did not apply the 1995 amendments to him. Instead, on January 20, 1999, it
reinstated his driving privileges. Approximately two weeks later, however, it notified him
that the 1995 amendments applied to him and that, pursuant to those amendments, it
intended to revoke his driving privileges for an additional three years.

Petitioner sought administrative review of the revocation, and DMV issued
an order upholding it. Petitioner then sought judicial review of that order, raising a
number of common-law, state and federal statutory and constitutional challenges to the
retroactive application of the 1995 amendments. Both petitioner and DMV moved for
summary judgment. The trial court denied petitioner's motion, granted DMV's, and
entered judgment affirming the DMV order.

On appeal, petitioner assigns error to the denial of his summary judgment
motion and to the entry of summary judgment in favor of DMV. On review of cross-motions for summary judgment, we determine whether there are any disputed issues of
material fact and whether either party is entitled to judgment as a matter of law. Hood
Technology Group v. Oregon OSHA, 168 Or App 293, 295, 7 P3d 564 (2000). We begin
with petitioner's nonconstitutional contentions before proceeding to his state and federal
constitutional arguments, respectively. State v. Moylett, 313 Or 540, 545, 836 P2d 1329
(1992).

Petitioner first argues that DMV should be estopped from retroactively
extending the revocation of his driving privileges an additional three years. According to
petitioner, the sentencing judge, petitioner's parole officer, and DMV each told him that
his driving privileges would be revoked for five years. Implicit in that advice, he argues,
is the assurance that the revocation period would not be extended. DMV argues that any
representations that it may have made are insufficient to estop it from performing an
obligation required by statute. We agree with DMV.

In this case, petitioner's claim of estoppel against DMV plainly fails as a
matter of law. To begin with, any statements of the trial judge and the parole officer
cannot bind DMV. Rise, 304 Or at 390-91. DMV's statements made at the time of
sentencing likewise are insufficient. They were conclusions of law concerning the effect
of the statutes in effect at the time. Indeed, given the state of the law at the time, DMV's
advice was not misleading; it was entirely accurate. Petitioner's argument that the advice
contained an implicit promise that the law would not change is neither a statement of
existing fact nor a promise that lawfully may be enforced. Does 1 through 7, 164 Or at
560.

Petitioner argues that, even if the statements made at the time of sentencing
cannot support his claim of estoppel, DMV's reissuance of his license in 1999 can.
According to petitioner, the reissuance amounted to an implicit representation of his
entitlement to reapply at that time. At that point, he argues, DMV should have known
that the 1995 amendments applied, and, given that he detrimentally relied on the
reissuance--however briefly--DMV should not now be entitled to revoke it.

At the outset, we observe that petitioner first advanced that argument on
appeal, during oral argument. Nothing in his brief mentions the 1999 act of reissuing his
license as the basis for his claim of estoppel. In fact, nothing in the summary judgment
record suggests that he made that argument to the trial court, either. To the contrary, his
summary judgment affidavit complains only that "[a]t the time of the original revocation,"
DMV made certain representations to him about the period of license revocation on
which he detrimentally relied.

At all events, the argument fails as a matter of law. The implicit
representation, if any, amounted to a legal conclusion as to the effect of the 1995
amendments and therefore cannot provide the basis for estopping an agency's future
conduct. Coos County, 303 Or at 181. Moreover, as we have noted, an agency's
representations cannot, through estoppel, force the agency to act contrary to statute.
Bankus, 252 Or at 260; Does 1 through 7, 164 Or App at 560. In this case, it is
undisputed that ORS 809.410(1) expressly requires DMV to revoke petitioner's license.
DMV could not lawfully choose to ignore the statute. Therefore, it cannot lawfully be
required to do so through estoppel. Harsh Investment Corp., 88 Or App at 158.

Petitioner next argues that the retroactivity provisions of ORS 809.410(1)
violate the state constitutional prohibition against ex post facto laws. He argues that the
revocation of his driving privileges amounts to a punishment and that the retroactive
increase in the period of revocation therefore amounts to an unconstitutional increase in
the punishment meted out for his crimes. DMV argues that petitioner's argument rests on
a false premise, namely, that the revocation of driving privileges amounts to punishment.
According to DMV, revocation of driving privileges is not punitive, but rather is remedial
in nature. Therefore, DMV concludes, any increase in the period of revocation does not
implicate the ex post facto prohibition. We agree with DMV.

Article I, section 21, of the Oregon Constitution, provides that "[n]o ex post
facto law * * * shall ever be passed." The Oregon courts have concluded that the state ex
post facto clause was intended to have the same historical scope as its federal counterpart
in Article I, section 10, of the federal constitution. That is to say, in accordance with
federal precedent that existed as of 1857, the Oregon ex post facto clause applies to:

"(1) laws that punish acts that were legal before the enactment of those
laws; (2) laws that impose greater or additional punishment than that
available before the enactment of those laws; and (3) laws that deprive the
defendant of a defense."

State v. Cookman, 324 Or 19, 31, 920 P2d 1086 (1996). (6) In this case, petitioner argues
that the retroactivity provisions of ORS 809.410(1) implicate the second of the three
categories. The determinative inquiry, therefore, is whether the statute imposes "greater
or additional punishment" on petitioner.

We begin with the intended purpose of ORS 809.410(1), as amended in
1995. The immediate text of the statute does not contain an express declaration of
punitive or remedial intent. It simply provides for a mandatory revocation of driving
privileges for the commission of certain crimes resulting from the operation of a motor
vehicle. However, the legislature has expressed more generally the purpose of the
Oregon Vehicle Code, of which ORS 809.410(1) is a part. ORS 801.020(11)(a) declares
that the overriding policy of the state is "[t]o provide maximum safety for all persons who
travel or otherwise use the public highways of this state." More to the point, the
legislature further declared that it is the policy of the state

"[t]o deny the privilege of operating motor vehicles on the public
highways to persons who by their conduct and record have demonstrated
their indifference for the safety and welfare of others and their disrespect
for the laws of the state, the orders of its courts and the statutorily required
acts of its administrative agencies."

The legislative history of the 1995 amendments to ORS 809.410(1) itself
bears out what the foregoing sources more generally suggest. The amendments were
intended to change existing law so that the period of revocation did not run while
offenders were serving time in state correctional facilities. According to the proponents
of the legislation, it served no purpose to revoke the license of an offender in prison. See,
e.g., tape recording, Senate Committee on Rules and Elections, Tape 85, Side A,
HB 3060, May 30, 1995 (testimony of Steve Doell). The amendments also were intended
to increase the period of revocation for certain crimes committed by the operation of a
motor vehicle.

As we have noted, that the legislature did not intend the 1995 amendments
to be punitive does not end the inquiry. We still must determine whether any punitive
effects of the amendments outweigh their nonpunitive purposes. The first consideration
is whether ORS 809.410(1) imposes an "affirmative disability or restraint." As DMV
points out, the statute does not interfere with any of the interests that usually are
implicated in ex post facto cases, such as freedom of movement from one place to
another, freedom to engage in a particular profession, or freedom from police scrutiny,
control, or monitoring. See, e.g., Matthews, 159 Or App at 590 (examining whether sex
offender registration interfered with those interests). Nevertheless, it must be
acknowledged that, to the extent that the statute prohibits petitioner from driving a motor
vehicle, it at least imposes a restraint on the method by which he may travel from place to
place.

Next, we determine whether any such burden or restraint historically has
been regarded as punishment. The answer to that question is not difficult. Courts
traditionally have regarded the suspension and revocation of a driver's license as
nonpunitive. See, e.g., Burbage v. Dept. of Motor Vehicles, 252 Or 486, 491, 450 P2d
775 (1969) (suspension proceeding is nonpunitive); State v. Robinson, 235 Or 524, 532,
385 P2d 754 (1963) ("nor do we believe that the revocation of a driver's license is
punishment or is intended to be punishment"); Phillips, 138 Or App at 474 (suspension of
driver's license is remedial).

Finally, we evaluate whether any punitive effect is excessive in relation to
the statute's nonpunitive purpose. Once again, the answer is not difficult. As we have
noted, the limited disability or restraint imposed by the revocation of a driver's license
historically has not been regarded as punishment at all. But even assuming some limited
punitive effect, it does not outweigh the substantial and legitimate interest of the public in
assuring safe travel on the state's highways. It must be remembered that the consequence
of revocation follows the commission of acts by the operation of a motor vehicle that
pose a serious threat to public safety--murder, manslaughter, criminally negligent
homicide, and first-degree assault. ORS 809.410(1). We cannot say, in light of the
potential danger to the public of permitting persons who commit those acts to continue to
drive, that imposing a limited period of revocation is "excessive." We therefore conclude
that ORS 809.410(1) does not violate the state ex post facto clause.

Petitioner next argues that, by extending the driver's license revocation
period from five to eight years, ORS 809.410(1) violates the double jeopardy clause of
the Oregon Constitution. According to petitioner, the term "jeopardy" as used in
Article I, section 12, of the Oregon Constitution, protects from "any form of loss," not
merely those "narrow kinds of loss traditionally associated with criminal convictions."
(Emphasis in original.) Because the extension of the period of revocation of his driving
privileges is such a loss, he concludes, ORS 809.410(1) is unconstitutional. DMV argues
that the double jeopardy clause prohibits only multiple "punishments" for the same
offense. Because the revocation of driving privileges is not a punishment, DMV
concludes, altering the period of revocation cannot be a violation of the double jeopardy
clause. DMV is correct.

In Phillips, we held that the state's system of administrative suspension and
revocation of a driver's license is remedial, and not punitive, in nature. In consequence,
we held that the imposition of a suspension in addition to the imposition of criminal
sanctions does not violate a driver's rights under the double jeopardy clause. 138 Or App
at 475. Petitioner's only argument to the contrary is that Phillips does not control,
because it involved a claim under the federal double jeopardy clause only.

Petitioner is correct that we applied essentially federal constitutional
analysis in determining the meaning of the state double jeopardy clause. This court, in
fact, routinely has assumed that the analysis under the state and federal double jeopardy
clauses is the same, particularly when the parties do not suggest any difference in
analyzing claims arising under the state clause and its federal counterpart. See, e.g.,Umatilla County v. $18,005 in U.S. Currency, 142 Or App 513, 516, 921 P2d 426, rev
den 324 Or 395 (1996). In so doing, we have followed familiar Supreme Court practice.
See, e.g., Dept. of Transportation v. Lundberg, 312 Or 568, 572 n 4, 825 P2d 64, cert den
506 US 975 (1992) (when parties do not offer an alternative analysis under the Oregon
Constitution, courts may assume that analysis under the state and federal constitutions is
the same). In this case, petitioner has offered no alternative analysis under the Oregon
Constitution, save his unadorned conclusion that the state double jeopardy clause should
not be limited to successive "punishments." Phillips therefore controls.

In the alternative, petitioner argues that Phillips was incorrectly decided
even as a matter of federal law. According to petitioner, Phillips relied on United States
v. Halper, 490 US 435, 109 S Ct 1892, 104 L Ed 2d 487 (1989), which the United States
Supreme Court since has abandoned, and, under the proper analysis, the revocation of
driving privileges should be regarded as punishment for federal double jeopardy
purposes. DMV acknowledges that, in Phillips, we cited Halper, but it insists that the
overruled decision was not central to our analysis and, in any event, even under the more
current case law, revocation of driving privileges is not punishment that triggers the
double jeopardy clause of either the state or federal constitution.

In Halper, the United States Supreme Court held that a civil fine for
violating the Federal False Claims Act was punitive in nature, notwithstanding the fact
that it was a civil--and not a criminal--penalty. In reaching that conclusion, the Court
held that even civil penalties may trigger the double jeopardy clause of the federal
constitution if the penalties are so overwhelmingly disproportionate to the injury caused
that they could not fairly be said to serve solely a nonpunitive purpose. Halper, 490 US at
448-49.

In Phillips, the defendant argued that, under Halper, the suspension of his
driving privileges amounted to punishment and that, as a result, once he had been
suspended for driving while under the influence, he could not subsequently be subject to
criminal prosecution for the same offense without running afoul of state and federal
double jeopardy prohibitions. Phillips, 138 Or App at 470-71. We noted that, indeed,
Halper recognized that some civil penalties conceivably could be regarded as
punishments for double jeopardy purposes if they are so disproportionate to the injury
caused that they cannot fairly be said to be remedial. Id. at 472. However, we also noted
that, in subsequent cases, the Supreme Court did not follow the same analytical approach
that it applied in Halper and that the proper approach now appeared to require an
examination of the challenged statutes as a whole, to determine whether their effect was
to deter or to punish. Id. at 473-74. We did not apply the Halper test that penalties are
punitive for double jeopardy purposes unless they are solely remedial in purpose and
effect. Instead, we examined the relevant statutes and, by the usual methods of statutory
construction, determined that the suspension of a driver's license is remedial in nature.
We acknowledged that suspension may have some deterrent or punitive effect, but we
nevertheless concluded that such effect was not so substantial as to outweigh the remedial
nature of the statutory scheme. Phillips, 138 Or App at 474.

Meanwhile, in Hudson v. United States, 522 US 93, 118 S Ct 488, 139 L Ed
2d 450 (1997), the Supreme Court abandoned the "solely remedial" test of Halper in
favor of an analysis that requires the courts to examine the whole statute to determine
whether, as a matter of statutory construction, a penalty is punitive in purpose and effect.
The Court held that deterrent or punitive effect is not dispositive, as it was in Halper, but
instead is merely a factor to take into account in determining the purpose and effect of the
challenged law. Hudson, 522 US at 101.

Thus, what the Supreme Court required in Hudson is essentially the analysis
that we applied in Phillips. We find no reason to reconsider our decision in that case and,
on that basis, reject petitioner's contention that ORS 809.410(1) violates the state double
jeopardy clause.

Petitioner next contends that the application of the amended version of ORS
809.410(1) to him violates the state constitutional prohibition against impairment of
contracts. Petitioner suggests that he and the State of Oregon "entered into a binding
contract" in connection with the negotiated plea of his criminal charges. The precise
contours of his contract claim are difficult to discern, but, as best we can tell, he asserts
that his plea agreement with the district attorney somehow precludes the application of
ORS 809.410(1) to his case. The plea agreement with the district attorney, however,
expressly provided that, in return for a plea of guilty to certain crimes, the district attorney
would make a specific sentence recommendation, including a five-year driver's license
suspension. Petitioner, in fact, pleaded guilty, and the district attorney made precisely the
recommendation that the plea agreement required. The terms of the plea agreement
having been completely performed, there remained no contractual rights for the amended
version of ORS 809.410(1) to impair.

In a supplemental memorandum following oral argument, petitioner
attempts to sidestep that conclusion by invoking an implied contract with the judge in the
criminal trial. He suggests that, when the judge in the criminal trial approved the plea
agreement, it became a "sentencing contract," the terms of which included revocation of
driving privileges for a period of five years only. The argument is unavailing, however.
At the least, it cannot be reconciled with the fundamental principle that government
officials cannot bind future legislatures against amendments to existing law. Does 1
through 7, 164 Or App at 560. Thus, even assuming that the trial court's acceptance of
the plea agreement amounted to an implicit assurance that the legislature would not later
change the law, such an assurance would have been unenforceable. Id. We reject
petitioner's contracts clause challenge without further discussion.

Petitioner next argues that the revocation of his driving privileges under the
amended version of ORS 809.410(1) violates the federal ex post facto clause. Article I,
section 10, of the federal constitution, provides that, "No state shall * * * pass any * * *
ex post facto law." At least as to the analysis that is pertinent to this case, the Oregon
courts have concluded that federal and state ex post facto analysis is identical. Matthews,
159 Or at 585 n 5 (quoting State v. Wille, 317 Or 487, 502, 858 P2d 128 (1993)).
Accordingly, for the reasons already described with respect to petitioner's claim under the
state ex post facto clause, his claim under the federal counterpart fails as well.

Petitioner also argues that the revocation violates the federal double
jeopardy clause. As we have explained, however, in Phillips, we determined that the
statutory program of suspension and revocation of driver's licenses is a remedial program
that does not implicate the state or federal double jeopardy clause. We reject petitioner's
argument without further discussion.

Petitioner's penultimate argument is that ORS 809.410(1) as amended
violates Article I, section 10, of the federal constitution, which prohibits any state from
passing a bill of attainder. A "bill of attainder" is a "law that legislatively determines
guilt and inflicts punishment upon an identifiable individual without provision of the
protections of a judicial trial." Nixon v. Administrator of General Services, 433 US 425,
468, 97 S Ct 2777, 53 L Ed 2d 867 (1977). Petitioner contends that he and others who
committed the pertinent crimes have been legislatively "singled out, based solely on their
past conduct" in committing those crimes and that the consequence of that singling out
clearly is "punishment." (Emphasis in original.) DMV argues that the legislature has not
improperly "singled out" anyone and that, in any event, the statute does not impose any
punishment within the meaning of the bill of attainder clause. We agree with DMV.

First, ORS 809.410(1) does not improperly "single out" any person. The
mere fact that a statute applies only to certain people, and not to others, does not render it
a bill of attainder. As the Supreme Court explained in the Nixon decision, the prohibition
against bills of attainder "surely was not intended to serve as a variant of the equal
protection doctrine, invalidating every Act of Congress or the States that legislatively
burdens some persons or groups but not all other plausible individuals." Nixon, 433 US at
471 (footnotes omitted). The specificity element of a bill of attainder claim is satisfied
only when the person challenging it demonstrates that he or she has been targeted for
illegitimate reasons. Thus, for example, in the Nixon case, the Court held that a statute
that applied to the presidential papers of a single individual did not satisfy the specificity
requirement because, at the time of passage, only those papers had not yet been housed in
functioning presidential libraries. Id. at 472. In this case, petitioner has made no effort to
explain how ORS 809.410(1), in providing for revocation of the driving privileges of
persons who have committed certain crimes, amounts to an illegitimate classification.

Second, ORS 809.410(1) does not legislatively determine the guilt of any
person. It legislatively specifies a consequence of a determination of guilt by the ordinary
judicial processes.

Third, the revocation of driving privileges is not punishment. The test for
determining what amounts to punishment for bill of attainder purposes is essentially the
same as the test for ex post facto and double jeopardy purposes. It requires an evaluation
of whether the statute imposes a penalty that historically has been regarded as
punishment, whether the statute reasonably can be said to further nonpunitive purposes,
and whether the legislative record evinces an intent to punish. Selective Svc. v. Minn.
Pub. Int. Res. Gp., 468 US 841, 852, 104 S Ct 3348, 82 L Ed 2d 632 (1984). As we have
noted above, revocation of driving privileges historically has been regarded as remedial,
not punitive; the case law previously has recognized that the purpose of the statutory
suspension and revocation program is essentially nonpunitive; and the legislative history
of the current version of ORS 809.410(1) plainly evinces an intent to protect public
safety, not to punish. We therefore conclude that ORS 809.410(1) does not violate the
federal bill of attainder clause.

Finally, petitioner argues that the application of ORS 809.410(1) to his case
violates due process in two respects. First, he argues that applying the statute to him is
fundamentally unfair in light of DMV's assurances that his license would be suspended
for only five years. According to petitioner, a showing of equitable estoppel necessarily
establishes a due process violation. Even assuming for the sake of argument that
petitioner is correct in the abstract, he does not prevail in this case because, as we have
explained, there has been no showing of equitable estoppel. Second, he argues that due
process requires specific performance of his plea agreement. Once again, even if
petitioner were correct that due process in some circumstances compels the performance
of a plea agreement, in this case there is nothing to compel because, as we have
explained, the plea agreement in fact was fully performed.

We therefore conclude that petitioner has failed to demonstrate that the trial
court erred in determining that DMV was entitled to judgment as a matter of law as to
each of his challenges to the revocation of his driving privileges in accordance with ORS
809.410(1).

"Any degree of murder, manslaughter, criminally negligent homicide
or assault resulting from the operation of a motor vehicle constitutes
grounds for revocation of driving privileges. The following apply to this
subsection:

"(a) Upon receipt of a record of conviction for an offense described
in this subsection, the division shall revoke the driving privileges or right to
apply for driving privileges.

"Any degree of murder, manslaughter or criminally negligent homicide
resulting from the operation of a motor vehicle and assault in the first degree
resulting from the operation of a motor vehicle constitute grounds for revocation
of driving privileges. The following apply to this subsection:

"(a) Upon receipt of a record of conviction for an offense described
in this subsection, the department shall revoke the driving privileges or right
to apply for driving privileges.

"(b) A person whose driving privileges or right to apply for driving
privileges are revoked under this subsection may apply for reinstatement of
driving privileges eight years from the date the person is released from
incarceration for the offense, if the sentence for the offense includes
incarceration. If the sentence does not include incarceration, the person
may apply for reinstatement eight years from the date the department
revoked the privileges or right to apply for privileges under this subsection."

3. In 1999, the legislature further amended ORS 809.410 to provide that
persons on parole, post-prison supervision, or probation when the 1995 amendments went
into effect may apply to reinstate their driving privileges eight years after the date of
original revocation, not the date of release. Or Laws 1999, ch 796, §§ 1, 5.

4. Petitioner argues that a false or misleading statement is not always required.
In support of that argument, he cites Pilgrim Turkey Packers, Inc. v. Department of
Revenue, 261 Or 305, 493 P2d 1372 (1972). In that case, a taxpayer had been misled by
the Department of Revenue about where to file certain tax forms. The court held that the
misleading instructions were sufficient to invoke the doctrine of equitable estoppel. Id. at
309. The misleading instructions arguably amounted to conclusions of law, although--as
DMV argues--they also could be viewed as assertions of present fact. In either event, the
case clearly has been superseded by subsequent authority that categorically, and
repeatedly, requires a misstatement of existing material fact. E.g., Welch, 314 Or at 715-16; Coos County, 303 Or at 181.

5. Petitioner argues that Bankus and similar authorities are distinguishable
because they involved the misleading statements of only a single government official,
while, in this case, he relied on the misleading statements of multiple officials. Petitioner
cites no authority for the distinction that he advances. Nor does he offer any reason why
the number of officials making the misleading statements would be material. Indeed,
petitioner makes no effort to distinguish Clackamas County v. Emmert, 14 Or App 493,
499, 501-03, 513 P2d 532 (1973), in which this court applied Bankus in rejecting a claim
of estoppel on the basis of representations by multiple government officials.

6. In State v. Fugate, 332 Or 195, 213, ___ P3d ___ (2001), the Supreme
Court recognized a fourth category, that is, laws that "retrench the rules of evidence so as
to make conviction more easy." That fourth category is not pertinent to the disposition of
the issues in this case.

7. Petitioner argues that the two-part inquiry of Matthews is simply wrong. He
does not explain why. Nor does he offer any analysis of his own. We therefore decline
without further discussion to reconsider our decision in that case.

8. Phillips was a double jeopardy, not an ex post facto, case. It is arguable that
what is "punishment" for the purposes of one constitutional clause is not necessarily
"punishment" for the purposes of another. At the very least, however, it is relevant that
the courts regard a statute as remedial for other, similar, purposes.

9. Petitioner's argument to the contrary is based on the testimony of a
representative of DMV at a Senate committee hearing on certain additional amendments
enacted four years later. According to petitioner, the witness testified that, as she
understood it, one of the purposes of the 1995 amendments was to "make it a little harsher
sanction" for certain crimes committed while operating a motor vehicle. Tape recording,
Senate Committee on Transportation, April 9, 1999, Tape 53, Side A (testimony of Kelly
Taylor). To begin with, the testimony of anyone four years after enactment is not
cognizable evidence of what the legislature intended four years earlier. See United
Telephone Employees PAC v. Secretary of State, 138 Or App 135, 139, 906 P2d 306
(1995) ("Subsequent statements by legislators are not probative of the intent of statutes
already in effect."). Moreover, the testimony consists of the views of a nonlegislator
witness, which often offers little, if any, insight into the intentions of the enacting
Legislative Assembly. See State v. Guzek, 322 Or 245, 260, 906 P2d 272 (1995)
(cautioning against reliance on testimony of nonlegislator witnesses).